Pre-marital Agreements

In the United Kingdom, pre-nuptial agreements currently have no legal standing. The divorce courts have the last word in the division of all matrimonial property and would ignore any pre-nuptial agreement if they thought that it was in any way unreasonable to either of the parties involved, particularly regarding to the maintenance and housing of children.

Although pre-marital agreements (also called pre-nuptial contracts) and pre-registration agreements are not automatically binding in English law currently, they are increasingly being given more weight and may therefore still be useful.

Pre-Nuptial agreements

A pre-marital agreement is a contract entered into before marriage, which seeks to set out what should happen in the event that the marriage breaks down in the future.

One area which is likely to be further developed through judicial interpretation is where parties have signed a marriage contract, or pre- or post-nuptial contract. As the courts now strive to achieve equality, family lawyers believe the demand for marriage contracts will rise. However, as a jurisdiction which retains a wide discretion to deal with the finances of a couple following a divorce, marriage contracts are not enforceable and binding on an English court.
While they are not binding, there are ways to encourage the court to uphold the terms of such an agreement. Provided the parties have given full and frank financial disclosure of their respective positions before the marriage, each party has had the opportunity of obtaining independent legal advice on the contract, neither party is under duress to sign and the contract is not being signed too close to the wedding itself, such contracts will have considerable weight in any hearing, particularly if the marriage has been dissolved after a short duration and with no children. Even with the existence of children, the court has upheld the terms of pre-nuptial contracts.

A pre-registration agreement

A pre-registration agreement is a contract entered into before a civil partnership is formed, which seeks to set out what should happen in the event that the partnership breaks down in the future.

They are often perceived as "unromantic", although it seems increasingly people are being more realistic about the pressures placed on relationships and recognise that relationship breakdown is unfortunately a reality for many couples. Such an agreement may provide for how capital and property will be divided in the event of marriage breakdown and whether and how much maintenance will be payable by one former spouse to the other for them and/or for any children. The agreement will not prevent the court ordering different financial provision, but will be of some evidential value.

The existence of a pre-marital agreement or pre- registration agreement will be taken into account as "one of the circumstances of the case" and/or as "conduct". The extent to which the court will follow the terms of the agreement will depend on the circumstances surrounding the making of the agreement, and in practice whether the financial provision made by the terms of the agreement is within the range of the orders that a court would make if the agreement were not in existence.

Although pre-nuptial agreements are not the answer to all divorce problems, there is consensus that for short, child-free marriages, they do have a distinct benefit.

However, the rules for unmarried couples are quite different and legally binding contracts are enforceable so long as the couple remain unmarried. It is divorce that gives the courts jurisdiction to intervene and make orders. The widespread belief that long standing unmarried couples have rights as common law husband and wife is a myth.